Abiel v. Rackley

ABAN ABIEL, Petitioner, v. R.J. RACKLEY, Warden, Respondent.

Case No.: 16cv2685-MMA (JMA)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

November 3, 2017

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS;

[Doc. No. 1]

AND DENYING CERTIFICATE OF APPEALABILITY

Petitioner Aban Abiel ("Petitioner" or "Abiel"), a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, challenging his second degree murder conviction in San Diego Superior case number SCD244879. (Pet. at 1, ECF No. 1 "Pet.")¹ The Court has reviewed the Petition, the Answer and Memorandum of Points and Authorities in Support of the Answer, the Traverse, the lodgments, and all supporting documents submitted by both parties. For the reasons setforth below, the Court DENIES the Petition for Writ of Habeas Corpus and DECLINES to issue a certificate of appealabilty.

FACTUAL BACKGROUND

The Court gives deference to state court findings of fact and presumes them to be correct; Petitioner may rebut the presumption of correctness, but only by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1) (West 2006); see also Parke v. Raley, 506 U.S. 20, 35-36 (1992) (holding findings of historical fact, including inferences properly drawn from those facts, are entitled to a statutory presumption of correctness). The following facts are taken from the California Court of Appeal opinion:

Prosecution Evidence

On February 17, 2012, Abiel attended an event at "Club Kabanas" in Clairemont (the club), a location used for parties and gatherings. Also there were Faroog Maluahi, Madol Wiir, Kedid Manon and victim Marko Aluat. All of the men were friends from the Sudanese community. Aluat and Wiir were best friends. At some point, Abiel told Manon and Kuol Monythot, who was acting as a security guard, that Aluat had pushed him. Abiel was visibly upset. Manon told Abiel not to take it seriously; that Aluat was just playing around. After Manon returned to the club, he heard a fight erupt, and when he went outside he saw Abiel and Wiir fighting. Abiel was screaming and angry, exclaiming at one point, "You a bitch homie." [Footnote 2: Manon identified Abiel's voice on a 911 call recorded at 3:34 a.m. on February 18, 2012. In that call, an unidentified man (No. 1) says, "Hey, stop. Aban," and tells everyone to go home. Another unidentified man says, "I'm not the one (unintelligible). He trying to do this because Marko [Aluat] get mad and whatever then he try to come (unintelligible) mother fucker (unintelligible) tonight." The first unidentified man says, "Aban, Aban, Aban, Aban, Aban, Aban, c'mon man (unintelligible) everybody gotta leave, man (unintelligible) just leave." He then urges Abiel to get in the car to leave because he did not want to get arrested.] Police arrived and told everyone to go home.

Manon and Maluahi left the club and drove to Maluahi's apartment. While in the car, Abiel called Maluahi and asked to speak with Manon. Abiel was cussing at Manon and told him, "I'm going to beat you if I get you." Manon asked what he had done; he did not understand why Abiel was acting hostile toward him. When Maluahi and Manon got to Maluahi'shouse, Abiel was there. As Manon was getting out of the car, Abiel came running up yelling and cussing, and started to attack him. The men argued, shoving each other, with Manon trying to get Abiel off of him. Monythot and Maluahi broke up the fight, and police eventually arrived. A police officer took Manon home. Manon was crying and upset. Abiel, Maluahi, Monythot and Maluahi's girlfriend returned to Maluahi's apartment, where they looked unsuccessfully for Abiel's car keys. Because Abiel had parked on the sidewalk illegally, he decided to sleep in his car so it would not get towed. Maluahi gave Abiel a blanket and returned to his apartment to sleep.

After Manon got home, he called several people, including Aluat and Abiel, to find out why Abiel was acting in such a way. Abiel accused Manon of taking his car keys and hung up. Manon denied taking Abiel's keys, but later realized he in fact had them in his pants pocket. Manon decided to return to Maluahi's house to return a parking ticket and end his association with the men. He planned to walk there, but while he talked to Aluat on the phone, Aluat told him he wanted to go with him. [Footnote 3 omitted.]

At around 4:00 a.m. or 5:00 a.m. on February 18, 2012, Aluat called his girlfriend, Tonisha Alexander, to pick him up from Wiir's house. According to Alexander, Aluat received multiple phone calls from the time he got in her car; his phone was "constantly ringing." Aluat was not angry, upset or drunk. After several hours, Aluat instructed Alexander to drive to Manon's house to pick up Manon, who Alexander noticed was anxious. Aluat then told her to go to Maluahi's house. When they arrived, Manon left the car first and started walking to Maluahi's house. Aluat spoke briefly with Alexander, who drove away when Aluat waved her off.

Before Manon got to Maluahi's door, he heard Aluat and Abiel yelling and rushed back to them. Abiel had a knife and was standing next to Aluat, who was on the ground. Alexander, who had returned to the scene after looking back and seeing Aluat lying in the street, was screaming, "He had a knife, he had a knife." Manon asked Abiel if he wanted to stab him with it. Abiel punched Manon and walked toward Maluahi's apartment. Manon followed and when Abiel got close to Maluahi's door, Abiel yelled for Maluahi to come out and said, "These people, they come to jump me." Manon told Abiel they had not come there to jump him. Abiel called 911 while he walked into the alley and threw the knife into a dumpster, then returned and punched Manon again. Abiel denied to the 911 operator having any weapons, but claimed he had been attacked in his car and that he had hitAluat, who went down and needed an ambulance. Police arrived while Abiel was still speaking with the 911 operator. An officer handcuffed Abiel, who had a small abrasion on his thumb and a small cut on the inside of his lip. Abiel complained to the officer that his face hurt, but he declined medical assistance.

Nineke Koopman, who lived in the area, was awoken early in the morning of February 18, 2012, by loud yelling and called police. She saw four to six black individuals, mostly men, yelling back and forth. When police arrived, some of the individuals left and an officer offered one of the men a ride home. Koopman heard yelling again at about 6:45 that morning. She looked out to see the same three or four individuals yelling at each other. One of the men, who she identified at trial as Abiel, advanced and took a swing at the other, who had been backing away. The man who was trying to get away fell to the ground and never got up. A third man was watching the fight and another was off to the side on his phone. The woman did not see the falling man hit kick or shove Abiel, or physically attack him. Koopman saw Alexander drive up and jump out of her vehicle while Abiel walked back toward the apartment complex.

Aluat suffered a stab wound to his chest, and was in a coma from the time of the stabbing until his feeding tube was removed, resulting in his death. Aluat would not have died but for the stabbing, and the medical examiner ruled his death a homicide.

Defense Evidence

Abiel testified in his own defense. He claimed that while at the club, Aluat approached him and he extended his hand but that Aluat responded by punching him in the head. Abiel asked him to stop, but Aluat pushed him. Abiel then spoke to Monythot, who removed Aluat from the club. Abiel testified he left the club at about 3:00 a.m. and while he walked to his car, was approached by Wiir, Manon and Aluat. Abiel told Wiir that Aluat had punched him, and the men began pushing and punching each other. Aluat and Manon also punched Abiel, who fought back. Police eventually arrived.

While Abiel was heading home, he called Manon to ask why he was fighting with him but Manon ended the call. He then called Maluahi, who was with Manon. Abiel asked to speak with Manon, but Manon again ended the call. Abiel went to Maluahi's house, and when Manon eventually arrived there and saw him, Manon "rushed" him. Abiel grabbed Manon,who started throwing punches. Police arrived and Manon walked away, but as soon as police left, he returned and tried to engage in another fight with Abiel. Police returned and gave Manon a ride home. After police left, Abiel could not find his car keys, and tried to call Manon to beg for his keys. Manon cussed at him and ended the call. Abiel decided to sleep in his car, which was blocking the sidewalk. While he was resting, he texted his employer and went through his phone.

Abiel testified that at around 7:00 a.m., his driver's side door opened. When Abiel opened his eyes, he saw Aluat moving toward him. According to Abiel, Aluat punched him and said, "I got you now, motherfucker." Aluat punched Abiel two or three times while Abiel tried to fight his way out of the car. Manon jumped in to punch Abiel with his left hand, and Abiel saw a knife in his right hand. Abiel grabbed Manon's right hand, hit it, and the knife fell to the ground. As soon as Abiel picked up the knife, Aluat closed in on him, punching him and grabbing him by the neck. The men were yelling and Abiel was screaming for help. When Aluat choked him, Abiel jabbed him in the back with the knife, then jumped back and slashed at Aluat when Aluat closed in on him again. Manon walked away, and Abiel called 911. He testified he did not tell the 911 operator about the knife because he panicked, the incident was still fresh, and everything happened fast.

On cross-examination, Abiel admitted that he walked to a dumpster in the alley and tossed the knife in it. He also admitted that he lied to police about using a knife and stabbing Aluat.

(Lodgment No. 7 at 2-7.)

PROCEDURAL BACKGROUND

On June 10, 2013, the San Diego District Attorney filed a...